New South Wales Court of Appeal CITATION : MANN v COMMONWEALTH [2001] NSWCA 236 FILE NUMBER(S) : CA 40396/00 HEARING DATE(S) : 13 July 2001 JUDGMENT DATE : 13 July 2001 PARTIES : Christopher Peter MANN v COMMONWEALTH OF AUSTRALIA & ANOR JUDGMENT OF : Handley JA at 1; Powell JA at 23; Stein JA at 26 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20712/94 FILE NUMBER(S) : LOWER COURT Newman J JUDICIAL OFFICER : COUNSEL : In person M Aldridge SC/V Hartstein SOLICITORS : In person Australian Government Solicitor CATCHWORDS : LIMITATION - FRAUD EXCEPTION - NO QUESTION OF PRINCIPLE LEGISLATION CITED : Supreme Court Act Limitation Act CASES CITED: Seymour v Seymour (1996) 40 NSWLR 358, 372 DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40396/00 CLD 20712/94 HANDLEY JA POWELL JA STEIN JA 13 July 2001 CHRISTOPHER PETER MANN v COMMONWEALTH OF AUSTRALIA & ANOR JUDGMENT 1 HANDLEY JA: This is an appeal as of right by Christopher Mann from a final judgment of Newman J delivered on 3 May 2000. The Judge entered judgment for the defendants on all causes of action. The plaintiff has appealed as of right and no affidavit, as required by the Rules of Court, has been filed to establish that the appeal lies as of right. 2 Under s 101 (2)(r) of the Supreme Court Act, as amended in 1998, an appeal does not lie to this Court from the final judgment or order in proceedings in the Supreme Court unless the matter in issue amounts to the value of $100,000, or more. No objection to the competency of this appeal was raised, either by the respondents, or by the Registrar. 3 When this matter was drawn to the attention of Mr Mann, he was able to raise a plausible argument that had objection been taken to the competency of this appeal in good time, he could have filed an affidavit, which disclosed an arguable basis for the view that the appeal lay as of right. In these circumstances, particularly since the objection was not taken by the legal advisers for the Commonwealth and the State, I would propose that the Court treat the appeal as competent and dispose of the case on that basis. 4 The proceedings before Newman J arose out of events which occurred in this country in the 1980s involving the plaintiff, his company Western Medical Services Pty Limited, the New South Wales Department of Health, the Commonwealth Health Insurance Commission, and the Department of Immigration and Ethnic Affairs. Dr Mann's company provided a locum service for New South Wales doctors to enable them to take holidays, or to cover periods of absence due to illness and the like. Mr Mann's company secured the services of qualified medical practitioners by sponsoring qualified doctors from the United Kingdom as temporary immigrants. 5 The administration of the company brought it and Mr Mann into contact with the government agencies and departments referred to, and the New South Wales Medical Board. A number of communications passed between Mr Mann and those parties between March and December 1983 which are set out in appendix A to the judgment of the trial Judge. 6 For reasons which need not be gone into, a defamation action was commenced by Mr Mann and his company in the High Court of Justice of England and Wales on 14 December 1981. The action was brought against the publishers of medical journals circulating largely in the United Kingdom, a journalist, and other parties. The plaintiffs were required to give discovery of documents and this became a drawn out process extending over a number of years. The second and third defendants formed the view that the plaintiffs' discovery was not adequate, and their solicitor, Mr Rubenstein, came to Australia in March 1987 and was allowed to inspect the documents listed in appendix A. 7 Mr Rubenstein was allowed to take particulars of these documents, but was not furnished with copies. On his return to the United Kingdom, he swore an affidavit in support of an application in the High Court for further and better discovery by the plaintiffs. An order requiring such discovery was made on 29 October 1987 and was complied with by the plaintiffs on 4 November of that year. It is evident that the documents in question were in the possession of Mr Mann and his company. 8 The present proceedings were commenced on 30 September 1994 against the Commonwealth and the State of New South Wales based upon the disclosures in 1987, by officers of the various departments, of communications which had passed between the parties in 1983. 9 The causes of action pleaded in the further amended statement of claim allege breach of a duty of confidence on the part of both defendants, breach of contract on the part of both defendants, negligence and misrepresentation on the part of both defendants, and as against the Commonwealth, misfeasance in public office. The causes of action, other than for breach of confidence, are in contract or tort. 10 The breaches of duty relied upon occurred in March 1987 and came to the knowledge of Mr Mann no later than 29 October 1987, and probably some days before that, when Mr Rubenstein's affidavit, referring to his inspection of the documents, was served. 11 Mr Rubenstein's affidavit included annexure A. This list indicates the originator or recipient of each communication, and therefore prima facie discloses the source of any breach of confidence which took place when Mr Rubenstein was allowed to inspect either the original or a copy. The plaintiff 's causes of action, if any, accrued or arose in March 1987 and came to the knowledge of Mr Mann no later than October of that year. Prima facie, therefore, time for the purposes of the Limitation Act commenced to run in March 1987, and all causes of action were statute-barred 6 years later. 12 Section 14 of the Limitation Act provides that actions in tort and for breach of contract are statute-barred after 6 years. As I have previously mentioned, the causes of action pleaded in this case, other than the cause of action for breach of confidence, were in contract or tort. 13 The cause of action for breach of confidence independent of any express or implied right arising under contract is a cause of action conferred by the principles of equity, and s 14 of the Limitation Act does not apply of its own force to equitable causes of action. This is made clear by s 23 of the Limitation Act which provides that s 14 does not apply except in so far as it might be applied by analogy to a cause of action for equitable relief. However s 14 does apply by analogy to a claim for damages for equitable compensation for breach of a duty of confidence. Prima facie therefore all causes of action in this case were statute-barred when these proceedings were commenced in 1994. 14 Mr Mann seeks to escape from this situation by relying upon s 55 of the Limitation Act which provides that where there is a cause of action based on fraud, or where the cause of action, or the identity of a person against whom a cause of action lies, is fraudulently concealed, the time which elapses after a limitation period, fixed under the Act for the cause of action, commences to run, and before the date on which a person first discovers or might with reasonable diligence discover the fraud or concealment, does not count in the reckoning of the limitation period. 15 Mr Mann submits that in this case the causes of action were fraudulently concealed by the Commonwealth and the State and the time which elapsed between March 1987 when the causes of action accrued and time would normally have commenced to run and his discovery of the existence of his causes of action did not count. 16 There is some substance in this claim in relation to the period between March 1987 and October 1987, but in my judgment service of the affidavit of Mr Rubenstein brought home to Mr Mann both the existence of his causes of action and the persons against whom they lay. 17 The present action has not been brought against the individual public servants who permitted Mr Rubenstein to inspect the documents in question; it has been brought against the Commonwealth and the State on the basis of their vicarious liability for the acts and defaults alleged against the public officials concerned. 18 The service of the affidavit of Mr Rubenstein more than sufficiently brought home to Mr Mann the knowledge that Commonwealth and State public servants had disclosed to Mr Rubenstein the documents he listed in his affidavit, even though it did not identify the particular public officials who were directly involved. This information enabled Mr Mann, had he been so advised, to commence proceedings then and there against the present respondents. 19 In my judgment therefore even if there was a period of fraudulent concealment between March and October 1987, and I am not deciding that there was, it came to an end on service of Mr Rubenstein's affidavit upon the solicitors acting for Mr Mann and Western Medical Services in the English proceedings. This conclusion is sufficient to dispose of Mr Mann's attempted reliance on s 55 as an answer to an otherwise valid plea of limitation. 20 The trial Judge also found that in any event there had been no fraud by these defendants which brought the case within s 55. The leading authority on what constitutes fraud in s 55 is Seymour v Seymour (1996) 40 NSWLR 358, 372 in the judgment of Mahoney ACJ who said: "… there must be in what is involved a consciousness that what is being done is wrong, or that to take advantage of the relevant situation involves wrongdoing. At least this is so in the generality of cases. There is in this, as in many things, the problem of dealing with the person who closes his eyes to wrong, or is so lacking in conscience, that he is not conscious of his own lack of proper standards". 21 In my judgment the trial Judge was correct for the reasons that he gave in concluding that there was no evidence that the relevant officials of the Commonwealth and the State were guilty of fraudulent concealment in the sense referred to by Mahoney ACJ in Seymour v Seymour. 22 For those reasons I conclude that the appeal should fail, and should be dismissed with costs. 23 POWELL JA: Although the reasons which have been given by Mr Justice Handley, with which reasons I agree, are sufficient to dispose of this appeal, it seems to me that there is a more fundamental reason why the action should have failed, and why the appeal must fail, and that is that, if I understand materials which are before the Court correctly, Mr Mann never had a cause of action - even if one accepts that there were confidential information passed to the government, it was not Mr Mann's confidential information but that of his company, Western Medical Services Pty Limited. 24 Insofar as the other causes of action as, for example, that alleging a breach of contract, are concerned, the contracts into which the government departments entered were contracts not with Mr Mann in his personal capacity but contracts made by Mr Mann on behalf of his company, and much the same observation can be made in respect of the other causes of action. 25 I agree with the orders proposed by Mr Justice Handley. 26 STEIN JA: I agree with the judgment of the Presiding Judge, and with the further remarks of Powell JA. I would add only this, on one view of the evidence the causes of action relied on by the appellant arose on or about 29 October 1987, see paragraph 66 of the judgment of Newman J. If that be so the actions relied on are still caught by the six year limitation in s 14 of the Limitation Act. I agree with the orders proposed. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.